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Lord Greaves moved, as an amendment to Amendment No. 7, Amendment No. 7A:


The noble Lord said: My Lords, I seek advice from someone: am I speaking to all of the amendments grouped with Amendment No. 7A? The noble Lord, Lord Carter, nods his head. He seems to be running proceedings today, so I shall accept his advice. I am grateful to him—on this occasion, at least.

I turn to the purpose of Amendment No. 7A and those grouped with it. As the Bill is drafted, the disease control (slaughter) protocol is a document on which the Secretary of State will consult and he will take account of what people say but he will be able to issue it in whatever way he wishes—he will be able to publish

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it in whatever form he thinks necessary. We seek to change that and make the document an order or statutory instrument that is published in the normal way for statutory instruments; that is, it would be subject, if the amendment is agreed to, to the negative resolution procedure, which would not be terribly onerous. However, the statutory instrument would be presented to Parliament and could if necessary be debated by Parliament. We believe that that is a necessary safeguard in relation to a high-profile and controversial matter. It would ensure that the Government know that there is a backstop if what they propose in the protocol is not acceptable. The statutory instrument could be debated by Parliament and in extremis rejected by Parliament.

We are not proposing a huge step; we do not believe that our approach will prevent the Government from doing what they want to do. We believe that it is a democratic safeguard, which, in this case, should be provided. That is what Amendment No. 7A would do. It is the core amendment in this group.

Most of the remaining amendments in this group would change the word "protocol" to "regulations". It has been suggested that the word "protocol" is too weak and that the word "regulations" would be more appropriate. I have no strong feelings about that—our advice is that the word "regulations" is better than "protocol". Amendment No. 7A is at the heart of the matter and we seek to push the Minister in relation to it.

Amendment No. 7D in this group also suggests that, as part of the protocol, the Minister should have to state the reasons for carrying out a cull of animals rather than deciding on vaccination or other options. In a sense, this forms part of the debate that we had earlier today. It had to be raised at this point because it affects a new amendment proposed by the Minister. However, the issue forms part of the vaccination debate and I hope that the Minister will be able to accept Amendment No. 7D, or, at least, the principles behind it, and to write it into the protocol.

I begin by referring to the protocol in wider terms. We believe that the disease-control protocol and the contingency plan, which, in a later amendment, the Minister will propose should be on the face of the Bill, are both important documents. We have already seen the draft protocol and the interim contingency plan and believe that the criticisms expressed about the Bill and its lack of balance apply in both cases. In both, the emphasis is still heavily on slaughter and heavily against vaccination. We accept that the Minister is moving slowly towards accepting vaccination as an option, but it seems to us that the balance that we require is not there.

I consider the contents of the protocol and the contingency plan, which we shall discuss later, to be crucial. That is another reason why we believe that the protocol should be made by order. We believe that it should be a statutory instrument and debatable by this House and by the other place. I beg to move.

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5.30 p.m.

Lord Moran: My Lords, I want to ask the Minister a question, of which I had given him notice, relating to the amendment. With regard to this amendment, this new clause and other clauses of the same nature in the Bill, it would be helpful to all noble Lords to know the relation of the Bill to the work on foot and mouth now being carried out in Brussels.

When I spoke in the debate on 7th October, I mentioned that Commissioner Byrne had said that a draft directive was to be put forward, but, of course, at that stage I had not seen it. Now I have, thanks to the noble Lord, Lord Plumb, who kindly lent me his copy. I made a copy of the draft for myself and arranged for the Library also to have a copy so that it could make it available to other noble Lords. It is a very long and detailed draft, which no doubt the Minister and his department will consider and discuss.

However, I do not understand how the Bill fits in with the impending directive. In particular, I do not know when it is likely that the directive will come into force. But it seems to me that, if the Bill is passed in the relatively near future, there is a danger that it may become out of date and be superseded by powers that the Commission will propose that the EU as a whole should take in relation to the whole European Union. It is clearly proposing that arrangements should be made to cover the whole Union with regard to foot and mouth and possibly other animal diseases. It would be a great help to me and, I imagine, to other noble Lords to know how the Bill meshes with the impending directive, when the directive is likely to be issued and whether the Bill will be affected or unaffected by it.

Lord Livsey of Talgarth: My Lords, perhaps I may add one or two points to those made by my noble friend Lord Greaves and also mention one or two issues which the noble Lord, Lord Moran, raised. We feel very strongly that protocols do not have enough force. My experience of protocols in legislation occurred, in the main, during the passage of the Government of Wales Bill in the other place. When the Secretary of State was at a somewhat loose end when asked difficult questions, he said that a protocol on the matter would be introduced, and we had a long list of protocols. I would not say that they amounted to pages and pages but there were certainly large numbers of them. That is why we feel strongly that force should be given to this matter.

The other general point that I want to make is that the title refers to disease control, but then references are made only to slaughter. I do not want to pre-empt anything that the noble Lord, Lord Plumb, will say because he, too, very kindly showed me the draft EU directive. However, I shall mention one item in the directive which concerns control by vaccination in the case of a disease spreading severely.

Clearly, many different tools are used in controlling disease. If one is to have a disease-control slaughter protocol, then perhaps one should consider disease-control in other respects, too. I believe that that is important and it was underlined in the Royal Society

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report by Sir Brian Follett, who said something similar to what I said in relation to the EU proposal. In view of what the Minister said earlier about testing and matters of that kind—I believe that we shall return to those issues in this debate—perhaps in a year or 18 months we shall be given definitive explanations of these matters. None the less, we believe that the protocol could be cast far more widely, that it should be ordered and, at the same time, have rather more force.

The Countess of Mar: My Lords, I, too, support the amendment in the names of the noble Lords, Lord Greaves and Lord Livsey. The meaning of the word "protocol" is woolly when applied to legislation. It is also far more firm to make an order rather than prepare a document. I believe that this group of amendments should definitely be supported.

Baroness Byford: My Lords, I want to say a few words about the amendment. First, I should like to hear the Minister's response concerning the difference between a protocol and an order. I believe we all accept that that needs to be clarified. We need to be told where one or the other might fit in and whether the protocol or the regulations are stronger. I suspect that regulations are stronger than a protocol, but my legal language is not very good.

Secondly, following the point made by the noble Lord, Lord Moran, is the Minister in a position to give us an indication as to when a response will be made by our Government to the European Parliament's working group 5A, to which we referred earlier? That would help. Can he also say when the European Parliament is likely to put forward the proposal formally? At present, it is at a working group stage. I know that this is the Report stage of the Bill but it is difficult for us to comment on the matter because we need to hear what the Minister has to say. Therefore, I hope that any questions will be raised before the Minister sits down because we need clarification on those points.

Lord Whitty: My Lords, this group of amendments seeks, as the noble Lord, Lord Greaves, said, to turn the protocol into secondary legislation.

The protocol is designed to explain what needs to be taken into account when these new powers are used. These new powers relate to slaughter. We already have powers which relate to vaccination. The protocol is therefore only used to explain the circumstances in which the new powers would be used. It will not describe or constrain the whole strategy. It may well be that in most circumstances vaccination would be the preferred option. It will describe where we might in present circumstances use these new powers and only these new powers because that is the only part of the legislation that requires this degree of explanation.

Explanation is not the same as secondary legislation. It is more flexible than secondary legislation. Circumstances will change. The nature of the disease and outbreak may change and experience abroad may change. Indeed, to turn to the point made

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by the noble Lord, Lord Moran, there may be developments at the European level which would need to be taken into account in the protocol. It is unlikely that there will be developments in Europe that would give us more powers than we already have on vaccination, or more powers than we need—if we adopt the clause as it stands—on slaughter. The balance may well change as the EU moves more in favour of vaccination than has been the case historically. But it will not alter the fact that we need both powers.

As to the timetable of European consideration, the proposition has just been put on the table and the discussion is ongoing. It could be some time before we get to a position where this is substantively discussed at the political level and a considerable time after that before it has been through the parliamentary and the Council of Ministers processes and actually passes into European legislation.

At that point the protocol may need to reflect that development, but we are not at that stage now. We are unlikely to be at that point for some considerable time. So we must recognise what the protocol is for. It is an explanation, not a legislative tool. If we were to change its nature, it would be a piece of legislation, albeit secondary legislation, subject—as I believe the noble Lord, Lord Greaves, suggested—to the negative procedure, which would need a positive decision in order for it to be debated in the House. Although it would be a relatively low-key piece of legislation, if the circumstances of animal disease control changed we would have to change the provisions.

That is not what we need in this process. For those who may be the recipients of action under the clause we need to explain what are the limits, what things need to be taken into consideration and when were the Government to decide to go down the slaughter road. Turning that protocol into secondary legislation does not seem to be appropriate. I believe that it would be somewhat strange in terms of legislative procedures were we to go down that road. I suspect that the Delegated Powers and Regulatory Reform Committee would have to take a view on the matter. Therefore, I hope that the noble Lord, Lord Greaves, will not pursue this and that we shall have the protocol relating to this particular new power and not to the totality of the strategy of disease control.

The noble Lord, Lord Greaves, asked why we have used slaughter rather than vaccination. The protocol is intended to cover the general issue of matters that have to be taken into consideration. The next group of amendments relates to explanation in particular circumstances. The noble Lord's Amendment No. 8A—which I have already indicated I propose in principle to accept—states that the Secretary of State must include an explanation of why he proposes to use slaughter rather than vaccination. It is not appropriate to include that in a provision that sets out what has to be taken account of in the protocol. I hope that with that explanation this group of amendments is not pursued.

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5.45 p.m.

Lord Greaves: My Lords, I thank the Minister for that explanation. He has strengthened my view that this should be a document that is placed before Parliament. The protocol, at the moment, would be a document which is published and issued by DEFRA in the name of the Secretary of State, but in which Parliament has no locus whatever.

The Minister said that it would be an explanation of where the slaughter powers may be used and that that is different from secondary legislation. But secondary legislation very often is a matter of clarifying, explaining and setting out in more detail—which surely this will involve—what the primary legislation actually means and how it will be carried out. Secondary legislation is very often of that nature. So it seems to me to be appropriate.

The Minister also said that the legislation may have to change. Of course it may have to change. That is very often why secondary legislation is used in particular cases. To put something in concrete in primary legislation might prevent easy change, whereas secondary legislation is a relatively easy process of changing the details of legislation. There is no question of doing that quickly. Subsection (6) of the Minister's proposed new clause covering the disease control (slaughter) protocol states that if the Secretary of State wishes to change the protocol:


    "Subsections (2) to (4) apply to a revision of the protocol as they apply to its preparation".

Those subsections state that the Secretary of State has to prepare a document. He will have to prepare the revision of the document. It must indicate the purposes for which any power to which it applies will be exercised; the principal factors to be taken into account; the procedure to be followed in deciding whether in any circumstances or description of circumstances the power is to be exercised; the procedure to be followed by persons who have functions in relation to the exercise of the power; and the means by which a particular decision may be reviewed. So it is complicated stuff. That has to be published.

Then the Secretary of State has to consult. He must send a copy of the draft to such persons and organisations as he thinks are representative of those having an interest in the exercise of the power; consider those drafts; and amend the draft accordingly. So it will be quite a time-consuming procedure anyhow. Therefore, it is not something that can be done in a matter of days, or two or three weeks.

Turning this into the normal kind of parliamentary order, secondary legislation or statutory instrument—of which we receive great long lists every week, and look at some of them and wonder what they mean—is hardly a major imposition. But it does mean that the protocol, and amendments to the protocol when they occur, are laid before Parliament. We and Members of the other place will have a chance to look at them and, if we feel that they are wrong, to raise that matter. That is a fundamental safeguard. It is not a great imposition on the Government; it is hardly any imposition

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whatever. What the Minister says strengthens my view that this is what we should do. I therefore beg leave to listen to the Minister for a minute.


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